Miller v. Pennoyer

• Decision Date: 02 January 1893
• Citation: 23 Or. 364,31 P. 830
• Parties: MILLER v. PENNOYER, Governor, et al.
• Court: Oregon Supreme Court

31 P. 830

23 Or. 364

MILLER v. PENNOYER, Governor, et al.

Supreme Court of Oregon

January 2, 1893

Appeal from circuit court, Marion county; GEORGE H. BURNETT, Judge.

Application by H.B. Miller for writ of mandamus against Sylvester Pennoyer, as governor, to compel him to issue a certificate of election, and George W. McBride, as secretary of state requiring him to abstain from counting certain votes. From an order of the court denying the writ, the petitioner appeals. Affirmed.

Raleigh Stott and A.F. Sears, Jr., for appellant.

Geo. E. Chamberlain, Atty.Gen., Thos. O'Day, and D.R. Murphy, for respondents.

BEAN, J.

This is a proceeding by mandamus to compel the respondent, as secretary of state, in making the official canvass of the votes cast for presidential electors, at the late election as returned to him by the various county clerks, to abstain from counting certain votes alleged to have been illegally cast for Nathan Pierce, one of the candidates for electors nominated by the People's party, in consequence of his subsequent nomination by the Democratic party, and the printing of his name on the official ballot in more than one place,--that is, in both the People's and Democratic groups of electors,--although there is no claim or pretense of fraud in such publication, or that Mr Pierce's name was on the ballot in more than one place when cast by the voter or counted by the officers of election. The fact that this case was advanced out of its order, but recently submitted, and the necessity of an immediate decision, as well as the pressure of official business, renders it impossible for us to do more than to state briefly the position of each party, and the conclusion at which we have arrived, after carefully examining the questions presented on this appeal.

1. As to the construction of section 49 of the act of 1891 commonly known as the "Australian Ballot Law." By this law it is made the duty of the several county clerks to prepare and cause to be printed on a certain character of paper all ballots to be used or voted at any election held under the provisions of the act, and no ballots other than those so prepared and printed shall be used, circulated cast, or counted at any such election. Section 49 of the act, which prescribes what the ballot shall contain, so far as material to the question before us, provides that the ballots shall be styled "official ballot," and "shall state the number and name of the precinct and county they are intended for, and the date when the election is to be held; shall contain the names of all the candidates for offices to be filled at that election whose nominations have been duly made and accepted as herein provided, and who have not died or withdrawn; and shall contain no other names of persons, except that, in the case of electors of president and vice president of the United States, the names of the candidates for president and vice president may be added to the party or political designation. The name of the city or town or county in which the candidate resides shall be added to the name of each candidate. The name of each person nominated shall be printed upon the ballot in but one place, but there shall be added, opposite thereto, the party or political designation, expressed in not more than three words for any one party, as specified in each of the certificates of nomination nominating him for the office. The names of the candidates for each office shall be arranged under the designation of the office, and in alphabetical order, according to surnames, except that the names of candidates for the offices of electors for president and vice president shall be arranged in groups, as presented in the several certificates of nomination." The contention for petitioner is that the provision in this section that the name of each person nominated shall be printed upon the ballot in but one place applies to all ballots, whether to be used in a state or presidential election, and the exception in the latter part of the clause quoted only refers to the arrangement of the names upon the ballot; while the contention for respondent is that the object and design of the latter clause is to except from the provision against repeating names candidates for presidential electors, and to preserve the identity and unity of each electoral group or ticket, ...